Child Custody: Appeal and Error. An appellate court reviews
child custody determinations de novo on the record, but the
trial court's decision will normally be upheld absent an
abuse of discretion.
Judgments: Words and Phrases. An abuse of discretion occurs
when a trial court bases its decision upon reasons that are
untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence.
Visitation: Appeal and Error. Parenting time determinations
are also matters initially entrusted to the discretion of the
trial court, and although reviewed de novo on the record, the
trial court's determination will normally be affirmed
absent an abuse of discretion.
Child Custody: Appeal and Error. In child custody cases,
where the credible evidence is in conflict on a material
issue of fact, the appellate court considers, and may give
weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather
Modification of Decree: Attorney Fees: Appeal and Error. In
an action for modification of a marital dissolution decree,
the award of attorney fees is discretionary with the trial
court, is reviewed de novo on the record, and will be
affirmed in the absence of an abuse of discretion.
Appeal and Error. To be considered by an appellate court, an
error must be both specifically assigned and specifically
argued in the brief of the party asserting the error.
Trial: Appeal and Error. The conduct of final argument is
within the discretion of the trial court, and a trial
court's ruling regarding final argument will not be
disturbed absent an abuse of discretion.
Visitation. The best interests of the children are the
primary and paramount considerations in determining and
modifying parenting time.
Neb.App. 166] 9. __ . The right of parenting time is subject
to continuous review by the court, and a party may seek
modification of a parenting time order on the grounds that
there has been a material change in circumstances.
Modification of Decree: Words and Phrases. In the context of
marital dissolutions, a material change in circumstances
means the occurrence of something which, had it been known to
the dissolution court at the time of the initial decree,
would have persuaded the court to decree differently.
Modification of Decree: Proof. The burden is upon the party
seeking the modification of decree to show that there has
been a material change of circumstances.
Child Custody. Pursuant to Neb. Rev. Stat. §
43-2929(1)(b)(ix) (Reissue 2016), the parenting plan shall
include provisions for safety when a preponderance of the
evidence establishes child abuse or neglect, domestic
intimate partner abuse, unresolved parental conflict, or
criminal activity which is directly harmful to a child.
Attorney Fees. Customarily, attorney fees are awarded only to
prevailing parties or assessed against those who file
. In awarding attorney fees, a court should consider the
nature of the case, the amount involved in the controversy,
the services actually performed, the results obtained, the
length of time required for preparation and presentation of
the case, the novelty and difficulty of the questions raised,
and the customary charges of the bar for similar services.
from the District Court for Franklin County: Stephen R.
Illingworth, Judge. Affirmed.
Jane Schriner, pro se.
L. Hilliard and Michael R. Snyder, of Snyder, Hilliard &
Cochran, L.L.O., for appellee.
Chief Judge, and Pirtle and Bishop, Judges.
Jane Schriner appeals from the decision of the district court
for Franklin County reducing her parenting time, restricting
her participation in routine health-related appointments of
the parties' children, ordering her to attend an anger
management course and counseling, and ordering her to pay $7,
500 of her ex-husband's attorney fees. We affirm.
Neb.App. 167] BACKGROUND
Scott Schriner and Sara were married in 2005. Two children
were born during their marriage-one son in 2007 and another
son in 2009. Sara also had two teenage children from a prior
February 2014, the district court entered a decree dissolving
the parties' marriage. The decree indicates that during
the marriage, the parties had resided on a farm, and that
Cecil was a grain farmer and Sara had worked in the U.S.
postal system but resigned in November 2009 to be a
"stay at home mother.'' The district court
awarded Cecil legal and physical custody of the parties'
two children, subject to Sara's parenting time every
Tuesday and Thursday evening (after school until 7:30 p.m.)
and on alternating weekends (Friday after school until 5:30
p.m. on Sunday). Sara was also to get 6 consecutive weeks of
parenting time every summer, during which Cecil would get
parenting time on alternating weekends. Sara was ordered to
pay child support in the amount of $617 per month. Sara
appealed, and in an unpublished memorandum opinion, this
court affirmed the district court's decision regarding
custody, but reversed and remanded the child support
determination for further proceedings. See Schriner v.
Schriner, 22 Neb.App. xxv (No. A-14-371, May 22, 2015).
Our mandate issued on October 29, 2015. On November 23, the
district court's order on mandate was filed and ordered
that Sara pay child support in the amount of $321 per month,
beginning on February 1, 2014. There were further pleadings,
orders, and two more appeals regarding child support (both
dismissed for lack of jurisdiction) that need not be
discussed here as they are not relevant to the current
December 3, 2014, prior to the custody portion of the decree
being affirmed on appeal, Sara filed a complaint for
modification of parenting time. She alleged that since the
entry of the decree in February, there had been a material
and sub stantial change in circumstances justifying a
modification of parenting time, specifically: Cecil applied
to and was accepted [25 Neb.App. 168] by the "LEAD 34
program, " a 2-year program "operated by a
non-profit Nebraska Agricultural Leadership Council" in
cooperation with other "institutions of higher learning
throughout Nebraska"; the program began in September and
included "extensive time away from home"; Cecil
refused to allow Sara the right of first refusal for
parenting time during his participation in the LEAD program;
Cecil refused to notify Sara in advance of the children's
medical and other appointments in such a manner that she
could attend the appointments; Cecil continually refused to
have any discussions regarding the health of the children;
Cecil refused to notify Sara of the children's activities
in such a manner that would allow her to attend the
activities; Cecil refused to provide Sara with information
regarding the preschool that the younger child attended; and
Cecil refused to provide the names and contact information
for the children's daycares, daycare providers, or
nannies. Sara asked the court to enter an order modifying her
parenting time, ordering Cecil to notify her of all of the
children's appointments and activities, ordering Cecil to
provide names and contact information for all childcare
providers, and awarding attorney fees and costs to her.
January 26, 2015, Cecil filed an answer and
"Cross-Complaint." In his answer, he alleged that
Sara's complaint was frivolous and that she is able to
pay his attorney fees for a frivolous action and should be
ordered to pay his fees and court costs. In his
"Cross-Complaint, " Cecil alleged that since the
entry of the divorce decree, there had been a material change
in circumstances that justified a modification of the
parenting time. He alleged that Sara had (1) engaged in a
pattern of taking out her anger at Cecil in front of their
children; (2) engaged in a course of action where she
willfully and intentionally "poison[ed] the
mind[s]" of their children; (3) made false accusations
about Cecil to and in front of their children in an attempt
to make them angry or prejudice them against Cecil; (4)
engaged in disruptive behavior in front of their children at
parenting time exchanges, medical [25 Neb.App. 169]
appointments, public outings, and other events; (5) engaged
in behaviors wherein she set Cecil up for failure,
embarrassment, or frustration in front of their children or
others; and (6) failed and refused to cooperate with
parenting time adjustments and used the frequency of the
exchanges to send "harassing and annoying" text
messages to Cecil. Cecil asked the court to modify the
parenting time schedule to "a standard every other
weekend schedule or another similar schedule." He also
asked the court to enter additional orders "regarding
behavior parameters and guidelines that should be met by the
parties when co-parenting [the] children including
notification procedures, and contempt procedures for
behaviors that tend to or attempt to poison the minds of the
minor children." In his amended
"Cross-Complaint" filed on June 22, Cecil also
alleged that a material change in circumstances had occurred,
because Sara was picking the children up from school without
his knowledge or consent and because she refused to allow the
children to participate in activities during her parenting
time. He also requested that the district court restrict
Sara's participation in the children's medical care
and extracurricular activities.
on both parties' complaints to modify parenting time was
held on March 9 and May 4, 2016. Sara appeared pro se, and
Cecil was represented by counsel.
testified that he has had temporary custody of the boys since
May 2011 (when they were 2 and 4 years old) and that he was
granted full custody in January 2014. At the time of the
divorce, Cecil proposed a parenting plan allowing for Tuesday
and Thursday midweek parenting time because a presenter at
his required "divorce class" "suggested
heavily that children under the age of kindergarten never go
more than three days without seeing their other parent."
By the time of the modification hearing, the boys were 7 and
8 years of age. Cecil and Sara have mediated twice since the
decree, but the parties have had ongoing conflict. Both
parties testified regarding their struggles.
Neb.App. 170] Sara testified that in July 2014, Cecil was
given the opportunity to go back to school when he was
accepted to the LEAD program. From July to December, Sara
requested the dates of the program and asked to have the boys
on those days, but Cecil refused. Cecil also refused to tell
Sara who was watching the boys during that time. Sara said
that from September 2014 to March 2016, there were "over
45 nights" that Cecil was at LEAD program seminars, but
Sara had the boys less than half of those nights. "So,
the main reason for me filing for more time with the boys was
because [Cecil] was not going to be in the state, country or
around the area, and it would have been a great opportunity
to allow me to have that time."
testified that the LEAD program began in August or September
of 2014 and lasted until March 2016. It was basically
seminars, most of them lasting 3 days from Sunday to Tuesday,
and then there were two 2-week seminars. He had given Sara
more than 20 extra overnight parenting times when he attended
the LEAD seminars, but he said she still
"demand[ed]" more time; she never wanted to
"trade weekends, " and she only wanted extra
weekends. Over the past 2 years, Cecil had attempted to make
a "reasonable trade" with Sara more than 20 times,
for the LEAD program or at Christmastime, but she refused
(even if he was trading 5 days for 1). Cecil did not tell
Sara specifically where the boys would be each time he left
town for the LEAD program, but "[t]hey're either
with me or they're with my parents, " and testified
that Sara knows that. He also said he does not specifically
tell her where the boys will be because she is "so
harassing and burdensome." When Sara asked him to give
examples of dates and times when she was "harassing and
burdensome, " Cecil responded, "I don't catalog
and mark down on a calendar every time you followed me home
or bothered my friends or family, stopped in unexpectedly or
unannounced like you do."
Neb.App. 171] Cecil testified that he does not want to allow
Sara to have the "first right of daycare" and that
he believes she wants the children anytime they are not under
his direct supervision. He said Sara sends text messages
"hammering me that it's wrong for me to send them to
my parents or to my sister's for some play time when she
wasn't notified first and that she should have them first
and not somebody else." Cecil said that the boys need to
be involved with ...